HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 14
AFR
Case :- JAIL APPEAL No. - 4668 of 2005
Appellant :- Fakhrullah
Respondent :- State
Counsel for Appellant :- From Jail,S.P. Srivastaa,Seema Pandey[A.C.],V.P. Chaturvedi
Counsel for Respondent :- A.G.A.
Hon'ble Arvind Kumar Mishra-I,J.
By way of instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.03.2005 passed by the Sessions Judge, Siddharthnagar, in Sessions Trial No.318 of 2002 State of U.P. Vs. Fakhrullah, arising out of Case Crime No.211 of 2002, under Section 304 IPC, Police Station- Mishrauliya, District- Siddharthnagar whereby the accused-appellant has been sentenced to undergo eight years rigorous imprisonment.
Relevant to take note of fact that the present appellant who was sentenced to undergo eight years rigorous imprisonment in this case had suffered entire sentence and on that ground, he has been released on 12.02.2011 from District Jail, Siddharthnagar. This information has been communicated vide letter of the Superintendent, District Jail, Sidddharthnagar, dated 31.12.2016.
In view of above, though the present appellant has suffered the entire sentence but that by itself would not render this appeal ineffective or infructuous insofar as its merit is concerned. This appeal is alive for all purposes on its merit, therefore, it is being heard and disposed of on its merit.
Heard Sri Seema Pandey, learned amicus curiae for the appellant, Sri Pradeep Kumar, learned AGA assisted by Sri Sharad Srivastava and Sri Rajiv Kumar Rai, learned brief holders for the State and perused the record of this appeal.
The prosecution story as unfolded by the record and primarily by perusal of the first information report reveals that the informant Shakur lodged the first information report at Police Station Mishrauliya, District Siddharthnagar, on 08.11.2002 at 12:30 p.m. alleging therein that his brother Fakhrullah was present inside the house along with his son Waseem, aged 7 months, who was sleeping in verandah. All the adult members of the family had gone to attend natures call. The informant along with his family members saw the accused-appellant causing shovel blow on the neck of the child, due to which he died. The informant's brother who was of unsound mind fled away from the house after committing the offence. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-5.
Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.211 of 2002 under Section 304 IPC, at Police Station Mishrauliya, District Siddharthnagar, on 08.11.2002 at 12:30 p.m. Check FIR is Ext. Ka-3. On the basis of entries so made in the check F.I.R., a case was registered against the appellant in the relevant G.D. at serial no.20 on 08.11.2002 at 12:30 p.m. at aforesaid case crime number at Police Station Mishrauliya under aforesaid section of I.P.C. against appellant. General diary copy is Ext. Ka-4.
Record reflects that the investigation of this ensued and preparation was made for holding inquest of the deceased Waseem. Inquest report of the deceased Waseem was prepared by HCP Ramkesh Bharti PW-7 on 08.11.2002. It commenced at 14:00 hours and completed at 16:00 hours. The inquest witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. Inquest report is Ex. Ka-7.
In the course of proceedings, relevant papers were prepared for sending the dead body for post mortem examination. These papers are Ext. Ka-8 to Ext. Ka-11. Thereafter, post mortem examination on the cadaver of the deceased was done by Dr. A.K. Srivastava PW-4 on 09.11.2002 at 3:30 p.m. in the mortuary at Siddharthnagar wherein the following ante mortem injuries were found on the dead body:-
1. Incised wound 12 cm x 9 cm x neck deep. Vertebra at level of C 2 (axis) spinal card, great vessels, larynx and pharynx cut. Neck is attached to body by skin only anteriorly. Margin clean cut.
2. Incised wound 9 cm x 6 cm x bone deep and cavity deep on front of chest, 2 cm below external lungs, sternum, mandible of rib cut (II and III), subcutaneous both side cut and lacerated.
In the opinion of the doctor, cause of death was stated to be due to shock and haemorrhage as a result of ante-mortem injury nos.1 and 2. Duration of post mortem examination report from approximate time of death was rated about 24 to 36 hours. The doctor has proved post mortem examination report Ext. Ka-2.
In this case, initial investigation was gone into by HCP Ramkesh Bharti PW-7. The explanation is that no one was present at the police station and the concerned Station Officer/Inspector had gone out of station on the government duty. In the process, site plan of the incident was prepared which is Ext. Ka-13. Recovery of shovel was made on 08.11.2002 by this witness and a memo of the same was prepared which is Ext. Ka-1. He has also collected simple and blood stained soil from the spot and memo whereof is Ext. Ka-12.
Thereafter, on 10.11.2002 S.I. Saghir Ahmad Khan PW-6 who was initially entrusted with the task of the investigation took over the investigation and recorded entries made in the relevant papers including inquest report, Check FIR and general diary whereby the case was registered against the accused-appellant and also took note of various memos prepared by HCP Ramkesh Bharti PW-7. He effectuated arrest of the accused-appellant on 11.11.2002 and ultimately after recording statement of various persons, filed charge sheet against the accused-appellant Ext. Ka-14.
Pursuant thereto, proceedings were committed to the court of Sessions, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Sections 304 IPC. Charge was read over and explained to the appellant who abjured charge and opted for trial.
In turn the prosecution was required to adduce its testimony. The prosecution produced in all seven prosecution witnesses. A brief reference of whom entails hereinbelow.
Mohd. Izhar PW-1 is witness of fact of recovery of shovel made on 08.11.2002 and he has made endorsement on the same. Recovery memo of shovel is Ext. Ka-1. Rahisun Nisha PW-2 is mother of the deceased and she was produced as witness of fact. However, she has stated to have found her son dead while she came back to home. Zaibun Nisha PW-3 is grandmother of the deceased. She is also witness of fact although she was declared hostile and was cross examined by the prosecution as well as defence. Dr. A.K. Srivastava PW-4 has conducted autopsy on the cadaver of the deceased and has proved post mortem examination report Ext. Ka-2. Head Constable Ram Dayal PW-5 has noted relevant entry in the Check FIR and general diary. S.I. Saghir Ahmad Khan PW-6 is the second Investigating Officer and he has filed charge sheet after completing investigation against the accused-appellant. HCP Ramkesh Bharti PW-7 has conducted initial investigation on 08.11.2002 and 09.11.2002 and has prepared in the process various papers which he has proved before the trial court.
Apart from above, no other testimony was produced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the appellant was recorded under Section 313 Cr.P.C. wherein no specific submission has been made regarding any specific defence except the fact that he has been falsely implicated in this case on account of enmity.
No evidence, whatsoever, was led by the defence.
The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 304 Part-I IPC and sentenced the appellant to eight years rigorous imprisonment under Section 304 Part-I IPC.
Hence, this appeal.
It has been vehemently contended on behalf of the appellant that the entire case is silent about complicity of the accused-appellant in committing the crime. No motive, whatsoever, has been suggested even for the sake of argument which was guiding factor for committing the offence in question. The accused-appellant had no occasion nor any intention to commit the crime because the deceased was none other than his own child.
Learned counsel for the appellant has next contended that the first information report indicates that it is an occurrence witnessed by several persons of the family of the deceased, whereas, not a single iota of evidence has come forth on the point that the incident was witnessed by anyone of the family members of the deceased. Only two witnesses of occurrence have been produced who are PW-2 and PW-3. Both of them have not supported the case of the prosecution as described in the first information report. On the contrary their testimony favours the accused-appellant and speaks volume of his innocence. It cannot be said by perusal of the testimony of both the witnesses PW-2 and PW-3 that the appellant was ever involved in committing such ghastly crime.
Learned counsel for the accused-appellant has next contended that the place of occurrence was not secluded place but was frequently visited by family members of the accused-appellant and including the accused-appellant. As per testimony on record, PW-3 was also present on the spot when PW-2, mother of the deceased, shrieked inside the room after seeing the dead body of the deceased child in pool of blood.
Learned counsel for the accused-appellant has next contended that the investigation is faulting as the same was conducted by the police personnel of constable rank which in all probability would not have been conducted by such police personnel who had no power to investigate the case. Even the second Investigating Officer, Saghir Ahmad Khan PW-6 has stated in categorical terms that he filed charge sheet against the accused-appellant merely on the material collected by the previous Investigating Officer that is to say HCP Ramkesh Bharti PW-7. That way, preparation of the papers and particularly the site plan of the incident Ext. Ka-13 becomes a waste paper that cannot be read into evidence as such the place of occurrence also becomes dubious. The overall fact on record does not inspire confidence. The trial Judge was unmindful of such infirmity and illegality and straightaway based its finding of conviction on conjectures and surmises. Therefore, the conviction recorded by the trial Judge is wholly imaginative and sentence passed is wholly unjustified.
Learned AGA while refuting to the aforesaid arguments has submitted that the case in hand itself is self-speaking to the reality as to who committed murder of the deceased child. The irony of this case is that all the witnesses of fact are none other than the family members of the accused-appellant. That way they have tried to conceal real culprit accused-appellant.
Learned AGA has further contended that PW-2 being mother of the deceased and wife of the accused-appellant would never come forward to involve his husband as murderer and similar is the case with PW-3 who happens to be mother of the accused-appellant. That way, she turned hostile but their statement under Section 161 Cr.P.C. is indicative and suggestive of fact that they had seen the occurrence. The occurrence took place in their presence.
Learned AGA has further submitted that the trial court could have summoned the informant in exercise of its power under Section 311 Cr.P.C. and could have elicited truth from his testimony but even the trial court was wanting in its duty and failed to ensure correct picture of evidence which could have established more solidly guilt of the accused-appellant. The trial court was mindful of all these facts and it had rightly acted on the material available on record and it cannot be said that finding of conviction is based on conjectures and surmises but worthy material available on record was believed by the trial court and as such acted for recording conviction of the accused-appellant and passed just sentence.
Learned AGA has further contended that when no police officer except HCP Ramkesh Bharti PW-7 was present at the police station then natural course of law should be followed and necessary investigative part of the offence is to be gone into in giving practical shape by the police personnel, may be that he is a constable. The investigation was not completed and it continued and was completed by S.I. Saghir Ahmad Khan PW-6 who took over investigation on 10.11.2002 and filed charge sheet against the accused-appellant Ext. Ka-14. The trial court has acted on the wholesomeness of testimony and has rightly recorded conviction against the appellant and has passed appropriate sentence.
Also considered the above rival submissions in the light of what has been contended and replied, the moot point for adjudication of this appeal specifically revolves around the fact whether the prosecution has been able to establish guilt of the accused-appellant by proving fact that he committed murder of his own son aged 7 years on 08.11.2002 around 12:30 p.m. or not?
Bare perusal of the first information report Ext. Ka-3 reflects that description of the incident gives impression that the incident was witnessed by family members of the deceased. It makes out a case that the incident was witnessed in shape and form that shovel blow was given on the neck of the deceased child due to which the child died. Admittedly, the informant is brother of the accused-appellant but he has not been examined by the prosecution. The witnesses of fact who have been examined for proving occurrence are the wife and mother of the accused-appellant PW-2 and PW-3, respectively.
Perusal of their entire evidence/testimony nowhere proves complicity and involvement of the accused-appellant in committing the crime in question. On the point of occurrence, testimony of Rahisun Nish PW-2 will be cornered hearsay testimony/evidence. She has not supported the case of the prosecution that she ever saw the occurrence. She has not been declared hostile by the prosecution on any point nor she has been re-examined by the prosecution. That way, her testimony does not inspire confidence insofar as fact of complicity of the accused-appellant in committing the offence in question is concerned.
Bare perusal of testimony of Zaibun Nisha PW-3, mother of the accused-appellant, is reflective of impression that she along with her family members found the child dead on the cot inside the home when she along with others came to home. She has categorically stated in her examination-in-chief that she did not see anyone committing the offence in question. At this stage, she was declared hostile and cross-examined by the prosecution. However, this much fact came in her cross-examination that she wanted to save her son at any cost.
The submission of the learned AGA is that this testimony itself is suggestive of fact that this witness (PW-3) is concealing the truth and she had seen the occurrence but the submission so raised by learned AGA cannot be acted upon, for the reason that there may be so many reasons for giving such testimony that she wanted to save her son. May be that she was under impression that her son is innocent. May be that she had seen the occurrence but due to love and affection towards her son, she was not prepared to speak truth.
In both the above situation, which reasonably favours to the accused-appellant benefit would and ought to have been counted in favour of the accused. Therefore, no advantage can be drawn from the aforesaid testimony of PW-3 on this factual aspect of the case by the prosecution. She has further been cross-examined wherein she has stated that her daughter-in-law after attending natures call came inside the house where she saw the dead body of the child and she raised shrieks whereupon a number of persons including family members arrived on the spot. The accused-appellant was taking tea near tea stall. He also arrived on the spot. That way, it is obvious that the accused-appellant was present on the spot. Therefore, testimony of PW-3 does not come to the rescue of the prosecution. Nothing worthy material has been proved against the accused-appellant.
It is admitted fact that recovery of shovel/spade was also made and memo whereof was prepared on 08.11.2002 but it is not the case of the prosecution that any forensic examination was done for verifying actual fact, therefore, recovery of shovel/spade, that too not from the accused-appellant, would not come to the rescue of the prosecution. Apart from above, there is no other clinching material which may indicate and establish fact that it was the accused-appellant who committed the crime and was a man of unsound mind.
It is trite law in criminal jurisprudence that if an assertion is made regarding culpability of the accused-appellant then that assertion has got to be verified at least beyond reasonable doubt by the prosecution that such establishment is rooted and grounded on the material on record. In absence of any such material, it would not be possible to justify that a person, though high suspicion is raised against him, is guilty of committing any offence like the present one. In this way, the trial court was unmindful of material available on record and on the law point and it illegally convicted the accused-appellant under Section 304 Part-I IPC, whereas, charge framed under Section 304 IPC does not stand proved. There is no evidence, whatsoever, against the accused-appellant to make him guilty for committing murder of his son Waseem, aged 7 years.
The trial Judge based his finding of conviction more on conjectures, surmises and whims than on material on record and finding of conviction under Section 304 Part-I IPC is grounded on no substantive evidence, but it is based on imaginary hypothesis without any clinching and inspiring testimony and the same is liable to be set aside.
Therefore, the impugned judgment and order of conviction dated 24.03.2005 passed by the Sessions Judge, Siddharthnagar, in Sessions Trial No.318 of 2002 State of U.P. Vs. Fakhrullah, arising out of Case Crime No.211 of 2002, under Section 304 IPC, Police Station- Mishrauliya, District- Siddharthnagar, is hereby set aside. Accused-appellant is acquitted of charge as above.
Accordingly, the instant appeal succeeds and the same is allowed.
However, the appellant shall furnish surety bonds in compliance with Section 437A Cr.P.C.
Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.
Order Date :- 31.08.2017 rkg